Can a Maryland county or town ban or restrict the sale and possession of handgun ammunition?

Plain-English summary

A Maryland state senator and a Montgomery County assistant county attorney both asked the Attorney General whether local governments could restrict handgun ammunition, in connection with two specific pending measures: a proposed Montgomery County ordinance that would have required ammunition dealers to register with county police and required buyers to show a firearm registration certificate before purchasing matching-caliber ammunition, and a Friendship Heights Village Council regulation that would have banned virtually all possession of ammunition within that special tax district, with narrow exceptions for law enforcement, military personnel, licensed dealers, and state permit holders.

The opinion concluded that neither measure could lawfully be enforced, because Maryland law already preempts local regulation of handguns themselves through three separate statutory preemption provisions, one covering possession and transfer, one covering carrying and transporting, and one covering sales, and that preemption necessarily extends to ammunition as well. The opinion reasoned that ammunition is what makes a handgun operable as a firearm in the first place, so a local government that regulates ammunition possession or sale is, in substance, regulating handguns themselves, something state law expressly reserves to the state. The opinion noted, however, that this conclusion was limited to possession and sale of ammunition, and did not necessarily extend to other forms of local firearms regulation, such as ordinances governing the discharge of firearms.

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion applied Article 27 of the Maryland Code's handgun preemption provisions as they stood in 1982. The opinion itself notes that Montgomery County went on to enact the ammunition ordinance anyway in 1983, that a circuit court found it preempted, and that an appeal of that ruling was pending before the Court of Appeals when this opinion volume went to print. Maryland's firearms statutes have been substantially recodified and amended many times since 1982 (Article 27 was later replaced by the Criminal Law and Public Safety Articles). Anyone researching current Maryland law on local firearms or ammunition regulation should look to the current statutory framework and case law, not this 1982 analysis.

Common questions

Why can't a county just regulate ammunition instead of the guns themselves, if state law only preempts handgun regulation?
The opinion rejected that workaround. It reasoned that ammunition is the "sine qua non" that distinguishes a firearm from other devices, since a handgun cannot function as a handgun without the ability to fire ammunition. Because state law already occupies the field of possession, transport, and sale of handguns, regulating ammunition possession or sale amounts to regulating handguns by another name, which the same preemption provisions bar.

Does this mean local governments have no say over firearms at all?
No. The opinion was careful to note that it addressed only local restrictions on the possession or sale of handgun ammunition, and specifically said it did not mean to suggest that all local firearms regulation, such as rules governing where or when firearms may be discharged, is necessarily preempted, citing existing Montgomery County and state code provisions on that separate subject.

What ultimately happened to the Montgomery County ammunition ordinance mentioned in this opinion?
According to the opinion's own editor's note, the Montgomery County Council went ahead and enacted the ordinance in 1983 despite this opinion. A gun dealer then sued, and the Circuit Court for Montgomery County agreed with this opinion's preemption analysis and struck the ordinance down. That ruling was on appeal to the Court of Appeals as of this opinion's publication.

Does Maryland require gun owners to register their handguns?
The opinion notes that Maryland has no legal requirement that a handgun owner register the weapon, only a voluntary state police registration program, which is part of why the opinion found the county ordinance's registration-based ammunition-purchase scheme especially problematic: it effectively forced participation in a program state law makes optional.

Background and statutory framework

The request arose from two pending local measures addressing handgun ammunition in Montgomery County. The Friendship Heights Village Council, governing a special tax district known as the Villages of Friendship Heights and the Hills, sought county approval for a regulation banning virtually all possession of ammunition within the district, exempting only law enforcement, military personnel, licensed ammunition dealers, and individuals with state handgun-carry permits, and further barring anyone but a federally licensed dealer from selling ammunition, with sales restricted to buyers who could show they fell within an exception. Separately, a bill pending before the Montgomery County Council would have required all ammunition dealers in the county to register with county police and would have required ammunition buyers to appear in person and present a valid firearm registration certificate (or, for non-residents, proof of lawful possession) and to purchase only ammunition matching their registered firearm's caliber.

The opinion reviewed Maryland's existing statutory scheme governing handguns under Article 27 of the Maryland Code, which generally makes it unlawful to wear, carry, or transport a handgun, subject to exceptions for permit holders, for handguns kept on one's own property or business, and for unloaded handguns being transported from place to place. Article 27, §442 conditions the sale of a handgun on State police approval of the buyer's application, and only licensed dealers may sell handguns under §443. The opinion identified three separate, textually similar preemption provisions in Maryland law: one superseding local restrictions on the possession or transfer of pistols and revolvers (Article 27, §445(a)), one superseding local restrictions on wearing, carrying, or transporting handguns (Chapter 13, §6, Laws of Maryland 1972), and one superseding local restrictions on the sale of pistols and revolvers (Article 27, §442(a)), each declaring that the State "hereby preempts the right" of local jurisdictions to regulate the described conduct.

The opinion's central analytical move was to extend this preemption to ammunition even though none of the three provisions mentions ammunition by name. It reasoned that ammunition is what makes a handgun a functioning firearm, citing a Court of Appeals case and a prior Attorney General opinion recognizing that the capacity to fire projectile ammunition is what distinguishes firearms from other devices, and pointed to the statute's own structure, which contemplates that a person entitled to carry a handgun without a permit on their own property may keep it loaded, since the requirement that a transported handgun be unloaded only makes sense against a backdrop where a handgun kept in a permitted location may be loaded. From this, the opinion concluded that local regulation of ammunition possession or sale functions, in substance, as local regulation of handguns, which the existing preemption provisions already forbid, and noted that when the General Assembly has actually wanted to restrict access to ammunition, it has done so directly through its own statute, Article 27, §406, rather than leaving it to local governments.

The opinion closed by expressly limiting its scope: it did not address or preempt all local firearms regulation, giving as an example that ordinances governing where firearms may be discharged, referencing both Article 23A, §2(10) of the Maryland Code and a specific Montgomery County Code provision, were not necessarily affected by this preemption analysis, which was confined to possession and sale of handgun ammunition.

Citations

Statutes:

• Article 27, §36B(b) of the Maryland Code
• Article 27, §36B(c)(2) of the Maryland Code
• Article 27, §36B(c)(4) of the Maryland Code
• Article 27, §36B(c)(3) of the Maryland Code
• Article 27, §442 of the Maryland Code
• Article 27, §443 of the Maryland Code
• Article 27, §441(c) of the Maryland Code
• Article 27, §445(a) of the Maryland Code
• Chapter 13, §6, Laws of Maryland 1972
• Article 27, §442(a) of the Maryland Code
• Article 27, §441(g) of the Maryland Code
• Article 27, §406 of the Maryland Code
• Article 23A, §2(10) of the Maryland Code
• §57-3 of the Montgomery County Code
• 18 U.S.C. §923

Cases:

• Howell v. State, 278 Md. 389 (1976)
• Atlantic Guns, Inc. v. Montgomery County, Equity No. 85854 (Cir. Ct. for Mont. Co., Opinion and Order filed October 27, 1983)
• Montgomery County v. Atlantic Guns, Inc., No. 157, September Term, 1983 (Md. Ct. App., cert. granted February 23, 1984)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Local Government—Handguns—Ammunition—Preemption—State Law Governing Handguns Preempts Local Legislation Designed to Regulate the Possession or Sale of Handgun Ammunition

December 10, 1982

The Honorable Thomas Patrick O'Reilly
Senate of Maryland

Stephen P. Elmendorf, Esq.
Assistant County Attorney for Montgomery County

You have each requested our opinion on the authority of local governments to enact legislation that would ban or restrict the possession or sale of handgun ammunition. Mr. Elmendorf has specifically requested our views on the legality of: (i) a proposed Montgomery County ordinance to restrict the sale of handgun ammunition in Montgomery County; and (ii) a regulation adopted by the Friendship Heights Village Council to ban the possession of ammunition in the Villages of Friendship Heights and the Hills, a "special tax area or district" under the Montgomery County Code. Both of these measures are pending before the Montgomery County Council.

For the reasons given below, it is our opinion that State law generally preempts the authority of local governments to regulate either the possession or the sale of handgun ammunition. Accordingly, it is our view that, as to handgun ammunition, neither the proposed Montgomery County ordinance nor the Friendship Heights regulation could, if enacted, be lawfully enforced.1

I
Local Proposals

A. Friendship Heights

The Friendship Heights Village Council seeks county approval of a regulation to ban the possession of all ammunition within the tax district. The only exceptions would be for law enforcement and military personnel, licensed ammunition dealers, and persons who have State permits to carry a handgun.

The Friendship Heights regulation would also prohibit anyone other than a federally licensed ammunition dealer from selling ammunition.2 Moreover, a sale could lawfully be made only to a person who can show proof that he or she falls within one of the exceptions to the regulation's broad ban on possession.

B. Montgomery County

A bill now pending before the Montgomery County Council would impose certain restrictions on the sale of handgun ammunition, but none directly on possession.

All ammunition dealers in the county would be required to register with the county police. In order to purchase ammunition, a person would be required to appear in person, present a valid firearm registration certificate (or, in the case of a non-resident, proof that the firearm is lawfully possessed), and purchase only ammunition of the same caliber as the registered firearm.

Although registration of firearms is merely voluntary in Maryland, the ordinance would effectively require all handgun owners to register their weapons so as to be able to purchase ammunition in the county.

II
State Law

Maryland law contains detailed regulation of the possession and sale of handguns.

Under Article 27, §36B(b) of the Maryland Code, it is generally unlawful to "wear, carry, or transport any handgun". However, there are numerous exceptions to this prohibition. A private citizen may carry a handgun if he or she has a permit to do so [Article 27, §36B(c)(2)]; if the handgun is carried "within the confines of real estate owned or leased by him or upon which he resides or within the confines of a business establishment owned or leased by him" [Article 27, §36B(c)(4)]; or if the handgun is unloaded and is being transported from place to place [Article 27, §36B(c)(3)]. There is no requirement in State law that a gun owner register a firearm. However, the Maryland State Police conducts a voluntary registration program.3

Article 27, §442 imposes certain restrictions on the sale of handguns.4 Approval of an application by the State police is a prerequisite to the purchase of the weapon. Under §443, only licensed dealers may sell handguns.

State law contains three separate preemption provisions concerning local handgun restrictions. One deals with "possession":

"All restrictions imposed by the laws, ordinances or regulations of all subordinate jurisdictions within the State of Maryland on possession or transfers by private parties of pistols and revolvers are superseded by this section and the State of Maryland hereby preempts the right of such jurisdictions to regulate the possession and transfer of pistols and revolvers." Article 27, §445(a) (emphasis added).

The legislation that enacted the current State restrictions on the "wearing, carrying, or transporting" of handguns contains similar preemptive language:

"[A]ll restrictions imposed by the law, ordinances, or regulations of the political subdivisions on the wearing, carrying, or transporting of handguns are superseded by this Act, and the State of Maryland hereby preempts the right of the political subdivisions to regulate such matters." Chapter 13, §6, Laws of Maryland 1972 (emphasis added).

Finally, a similarly worded preemption provision has been enacted with respect to "sales":

"All restrictions imposed by the laws, ordinances or regulations of all subordinate jurisdictions within the State of Maryland on sales of pistols or revolvers are superseded by this section, and the State of Maryland hereby preempts the rights of such jurisdictions to regulate the sale of pistols and revolvers." Article 27, §442(a) (emphasis added).

III
Scope of Preemption

It is obvious that the local legislative proposals in question would be preempted if they directly restricted possession or sale of handguns. In our view, State law mandates the same result with respect to restrictions on handgun ammunition.

Ammunition is an integral element of a handgun. Indeed, the ability to detonate and propel projectile ammunition is the very factor, the sine qua non, that distinguishes firearms from other devices. Howell v. State, 278 Md. 389 (1976); 61 Opinions of the Attorney General 647 (1976). See also Article 27, §441(g) (defining "antique pistol or revolver").

The State handgun laws recognize this reality. For example, the law specifies that when one travels between places where one may lawfully carry a handgun even without a permit, e.g., one's home or business, "[the] handgun shall be unloaded and carried in an enclosed case or enclosed holder". Article 27, §36B(c)(3) (emphasis added). This requirement strongly suggests that the General Assembly intended the converse as well: persons who are at a place where they may lawfully carry handguns without a permit, like their homes or businesses, may also load them with ammunition, the very element that renders the handguns operable as such.

The provisions of State law that preempt local regulation of handguns can only be effectuated if they are understood to preempt local regulation of handgun ammunition as well. Conversely stated, local regulation of the possession or sale of handgun ammunition is, in reality, local regulation of handguns, a result expressly prohibited by State law.5 Indeed, when the General Assembly has wished to restrict access to ammunition, it has enacted such a restriction directly. See, Article 27, §406.

IV
Conclusion

In summary, it is our opinion that State law preempts local restrictions on the possession or sale of handgun ammunition such as are embodied in the Friendship Heights regulation and the proposed Montgomery County ordinance.

Stephen H. Sachs, Attorney General
Avery Aisenstark, Chief Counsel,
Opinions and Advice

Editor's Note: On June 7, 1983, the Montgomery County Council enacted the proposed ammunition control ordinance as Chapter 50 (Council Bill 17-82), Laws of Montgomery County 1983, effective September 6, 1983. In a subsequent lawsuit challenging the validity of that ordinance, the Circuit Court for Montgomery County noted that the ordinance was "invalid inasmuch as the power to enact such legislation has been preempted by State law". Atlantic Guns, Inc. v. Montgomery County, Equity No. 85854 (Cir. Ct. for Mont. Co., Opinion and Order filed October 27, 1983). A review of that trial court decision is now pending before the Court of Appeals. Montgomery County v. Atlantic Guns, Inc., No. 157, September Term, 1983 (Md. Ct. App., cert. granted February 23, 1984).

1 We have benefited from the ably presented, albeit differing, views on this matter from the County Attorney and the attorney for Friendship Heights. Although this Opinion does not expressly review every point raised in their exchange of views, we nevertheless have carefully considered their respective analyses during the preparation of this Opinion.

One related issue considered by these attorneys involved the underlying scope of the regulatory authority or police powers of a special tax district such as the Villages of Friendship Heights and the Hills. Given our conclusion here, which is based on the preemptive nature of the State law governing handguns, we need not address that issue in this Opinion.

2 A dealer who wishes to sell firearms or ammunition must obtain a license to do so from the Treasury Department. 18 U.S.C. §923. Maryland has a more rigorous licensing procedure for handgun dealers. Article 27, §443 of the Maryland Code. However, the State does not separately license ammunition dealers.

3 This program is not mandated by law. Thus, the proposed county ordinance, which conditions ammunition purchases on gun registration, incorporates a procedure that could be discontinued at any time.

4 Section 442 applies to "pistols and revolvers", which are defined as firearms "with barrel[s] less than twelve inches in length". Article 27, §441(c). For convenience, we refer to these simply as "handguns".

5 In describing the scope of State preemption with respect to the possession or sale of handgun ammunition, we do not intend to suggest that all local firearms regulation, such as regulations governing the discharge of firearms, is necessarily preempted. See, e.g., Article 23A, §2(10) of the Maryland Code; §57-3 of the Montgomery County Code. We do not here address the effect of State law on local regulation other than as expressly discussed above.